Previous marriage must be declared null and void before one can remarry
"I got married when I was 19 years old, and that was in 2004. Two years later, my husband and I got separated. Little did I know that he was already married, that was the reason why I left him. Since it is already 10 years from the time of our split up, can I now remarry, anyway our marriage is void?
Based on your letter, it appears that indeed your marriage to your husband is null and void, assuming that at the time of your marriage, his previous marriage is still subsisting and that there was no court order nullifying or declaring the same null and void or declaring his wife presumptively dead. This is clearly stated by the Family Code of the Philippines, as follows:“Art. 35. The following marriages shall be void from the beginning:
xxx(4) Those bigamous or polygamous marriages not failing under Article 41
xxx”It does not follow, however, that just because your marriage is null and void, you are already eligible to remarry. Again, you still have to have your marriage declared null and void by the court, otherwise, the subsequent marriage you will enter into shall likewise be null and void. Article 40 of the said law explicitly provides:“Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”Likewise, by contracting a subsequent marriage without the aforesaid judicial declaration of nullity of your first marriage, you may also be held liable for bigamy under Article 349 of the Revised Penal Code. Bigamy is defined and punished as follows:
“Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.”Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.We hope that we were able to enlighten you on the matter.Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to "
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"Previous marriage must be declared null and void before one can remarry"
was written by Mary
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comments. The article was created on 15 September 2021
and updated on 15 September 2021